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  1. added 2019-06-24
    Criminal Responsibility.Ken M. Levy - 2019 - In Robert D. Morgan (ed.), SAGE Encyclopedia of Criminal Psychology. Thousand Oaks, California, USA: Sage Publishing. pp. 269-272.
    This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were considered to (...)
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  2. added 2019-06-23
    Normative Ignorance: A Critical Connection Between the Insanity and Mistake of Law Defenses.Ken Levy - forthcoming - Florida State University Law Review 47.
    This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...)
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  3. added 2019-03-06
    Punishing Wrongs From the Distant Past.Thomas Douglas - 2019 - Law and Philosophy 38 (4):335-358.
    On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a strategy for resisting (...)
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  4. added 2019-02-11
    Justifications and Excuses in Epistemology.Daniel Greco - forthcoming - Noûs.
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  5. added 2019-02-03
    What is the Incoherence Objection to Legal Entrapment?Daniel Hill, Stephen K. McLeod & Attila Tanyi - manuscript
    Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...)
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  6. added 2019-01-04
    Responsible Brains: Neuroscience, Law, and Human Culpability.William Hirstein, Katrina L. Sifferd & Tyler Fagan - 2018 - New York, NY, USA: MIT Press.
    [This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...)
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  7. added 2018-08-22
    Social Justice in the Modern Regulatory State: Duress, Necessity and the Consensual Model in Law.Lucinda Vandervort - 1987 - Law and Philosophy 6 (2):205 - 225.
    This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal (...)
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  8. added 2017-11-28
    A New Societal Self-Defense Theory of Punishment—The Rights-Protection Theory.Hsin-Wen Lee - 2018 - Philosophia 46 (2):337-353.
    In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained (...)
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  9. added 2017-11-04
    Should Law Track Morality?Re'em Segev - 2017 - Criminal Justice Ethics 36 (2):205-223.
    Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...)
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  10. added 2017-09-04
    ‘Drugs That Make You Feel Bad’? Remorse-Based Mitigation and Neurointerventions.Jonathan Pugh & Hannah Maslen - 2017 - Criminal Law and Philosophy 11 (3):499-522.
    In many jurisdictions, an offender’s remorse is considered to be a relevant factor to take into account in mitigation at sentencing. The growing philosophical interest in the use of neurointerventions in criminal justice raises an important question about such remorse-based mitigation: to what extent should technologically facilitated remorse be honoured such that it is permitted the same penal significance as standard instances of remorse? To motivate this question, we begin by sketching a tripartite account of remorse that distinguishes cognitive, affective (...)
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  11. added 2017-08-06
    The Concept of Entrapment.Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2018 - Criminal Law and Philosophy 12 (4):539-554.
    Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law- enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions of permissibility and culpability. We explain, compare, and contrast two existing definitions of legal entrapment to commit (...)
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  12. added 2017-06-18
    Kant's Mature Theory of Punishment, and a First Critique Ideal Abolitionist Alternative.Benjamin Vilhauer - forthcoming - In Matthew Altman (ed.), Palgrave Kant Handbook.
    This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. This is radical (...)
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  13. added 2017-05-27
    Legal Oughts, Normative Transmission, and the Nazi Use of Analogy.Carolyn Benson & Julian Fink - 2012 - Jurisprudence 3 (2):445-463.
    In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...)
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  14. added 2016-05-03
    When May Soldiers Participate in War?Uwe Steinhoff - 2016 - International Theory 8 (2):262-296.
    I shall argue that in some wars both sides are (as a collective) justified, that is, they can both satisfy valid jus ad bellum requirements. Moreover, in some wars – but not in all – the individual soldiers on the unjustified side (that is, on the side without jus ad bellum) may nevertheless kill soldiers (and also civilians as a side-effect) on the justified side, even if the enemy soldiers always abide by jus in bello constraints. Traditional just war theory (...)
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  15. added 2016-04-25
    The Good, the Bad, and the Klutzy: Criminal Negligence and Moral Concern.Andrew Ingram - 2015 - Criminal Justice Ethics 34 (1):87-115.
    One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy Arpaly to criminal (...)
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  16. added 2016-04-24
    Parsing the Reasonable Person: The Case of Self-Defense.Andrew Ingram - 2012 - American Journal of Criminal Law 39 (3):101-120.
    Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...)
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  17. added 2016-01-31
    Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice System.Ken Levy - 2014 - Rutgers Law Review 66:629-684.
    Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? (...)
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  18. added 2015-09-16
    Insanity Defenses.Walter Sinnott-Armstrong & Ken Levy - 2011 - In John Deigh & David Dolinko (eds.), The Oxford Handbook of the Philosophy of the Criminal Law. Oxford University Press. pp. 299--334.
    We explicate and evaluate arguments both for and against the insanity defense itself, different versions of the insanity defense (M'Naghten, Model Penal Code, and Durham (or Product)), the Irresistible Impulse rule, and various reform proposals.
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  19. added 2015-09-02
    Justifications, Powers, and Authority.Malcolm Thorburn - 2008 - Yale Law Journal 117:1070.
    Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...)
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  20. added 2015-08-31
    Shortcomings of and Alternatives to the Rights-Forfeiture Theory of Justified Self-Defense and Punishment.Uwe Steinhoff - manuscript
    I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent (...)
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  21. added 2015-08-31
    Self-Defense and Imminence.Uwe Steinhoff - manuscript
    This paper argues that there is a significant moral difference between force applied against (imminent) attackers on the one hand and force applied against “threatening” people who are not (imminent) attackers on the other. Given that there is such a difference, one should not blur the lines by using the term “self-defense” (understood as including other-defense) for both uses of force. Rather, only the former is appropriately called self-defense, while for the latter, following German legal terminology, the term “justifying defensive (...)
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  22. added 2015-08-31
    Self-Defense and the Necessity Condition.Uwe Steinhoff - manuscript
    Rights forfeiture or liability are not a path to the permissibility of self-defense (not even barring extraordinary circumstances), and the necessity condition is not intrinsic to justified self-defense. Rather, necessity in the context of justification must be distinguished from necessity in the context of rights forfeiture. While innocent aggressors only forfeit their right against necessary self-defense, culpable aggressors also forfeit, on grounds of a principle of reciprocity, certain rights against unnecessary self-defense. Yet, while culpable aggressors would therefore not be wronged (...)
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  23. added 2015-06-05
    Deliberation, Responsibility, and Excusing Mistakes of Law.Alexander A. Guerrero - 2015 - Jurisprudence 6 (1):81-94.
    In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of (...)
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  24. added 2014-03-19
    Ethics and the Brains of Psychopaths: The Significance of Psychopathy for Our Ethical and Legal Theories.William Hirstein & Katrina Sifferd - 2014 - In Charles Wolfe (ed.), Brain Theory: Essays in Critical Neurophilosophy. London: Springer. pp. 149-170.
    The emerging neuroscience of psychopathy will have several important implications for our attempts to construct an ethical society. In this article we begin by describing the list of criteria by which psychopaths are diagnosed. We then review four competing neuropsychological theories of psychopathic cognition. The first of these models, Newman’s attentional model, locates the problem in a special type of attentional narrowing that psychopaths have shown in experiments. The second and third, Blair’s amygdala model and Kiehl’s paralimbic model represent the (...)
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  25. added 2014-03-12
    The Distributive Justice Theory of Self-Defense: A Response to Whitley Kaufman.Re'em Segev - 2008 - Ethics and International Affairs 22 (1).
    In several papers, I have argued for a theory of distributive justice and considered its implications. This theory includes a principle of responsibility that was endorsed by others within an account of defensive force (self-defense and defense of others). Whitley Kaufman criticizes this account which he refers to as the "distributive justice theory of self-defense" (DJ theory). In this paper, I respond to this criticism. I argue that Kaufman presents the theory inaccurately, that his standard of evaluation of the theory (...)
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